delivered the opinion of the Court.
This was a bill for injunction, brought by Josiah Garland, on the 26th January, 1846, against William Wynn, on the chancery side of the Lafayette Circuit Court.
The facts of the case, as far as it is material to state them, are as follows:
In 1836, Garland and Wynn were in possession, and claimed to be the owners of contiguous plantations in Fisher’s Prairie, *29on the west side of Red river. They held actual possession of the lands composing their respective plantations, by such title as could, at that time, be acquired by the purchaser of improvements on public lands. The plantation of Wynn joined that of Garland on its south and west side. The north and south line between them was a conditional or agreed line, being the west boundary of an old Spanish survey, running nearly through the middle of the NE. and SE. quarters of section 18 — so that Wynn resided within, and claimed up to that line on the west side, and Garland, in like manner, on the east side of it, and between Wynn and Red river. The south-west corner of Garland’s plantation was in the NE. quarter of section 19, near-the north side, and about the middle of it. The land on both plantations was so level as to require drainage for their mutual convenience and benefit. Under this state of facts Wynn and Garland agreed in parol (not in writing,) upon a plan or system of drainage, which they conceived was calculated to answer the purposes desired, and which they, at the time, supposed was the only plan by which this could be accomplished. Their agreement was, in substance, that Garland should dig a leading or line ditch on the south side of his plantation, and that Wynn should dig a similar one on the east side of his. These ditches were to run together at a low place in-the prairie, at the south west corner of Garland’s field, in the NE qr. of 19, and from this point the parties were to join their forces, both having many slaves, in digging a main ditch of sufficient dimensions to carry off all the water, which might accumulate there, in a southerly direction, upon some low timbered lands which were vacant or unoccupied. Each party had the right, by this agreement, to drain his own lands by means of smaller ditches running into the leading or line ditches. Garland was to construct and keep open the one on the south side of him; and Wynn was to construct and keep open the leading or line ditch running north and south. The main ditch was to be a community ditch, and kept up by them jointly. Their ditches were to be permanent, and constitute the boundaries between their respective planta*30tions. It appears that the ditches in question were made in pursuance of this agreement, and were enjoyed by the parties for some time after completion, without molestation or trouble from either party, during which time they were found to answer a very good purpose to both, and were mutually beneficial to them.
In the year 1840, the region of country, in which the plantations of Garland and Wynn were situated, was caused to be surveyed by the United States, and in the early part of the year 1843, those lands came into market. It was not until after this survey that the locality of the two plantations, in reference to to each other, and of their lines and ditches, as before described, was or could be definitely ascertained. Then it was, discord and enmity arose between the parties, caused by the fact that a portion of the lands embraced in their plantations, was taken from them, respectively, by means of the lines of the United States survey, which had been made posterior to their agreement in reference to the ditches, and the perpetual lines determined upon thereby.
Wynn proved a pre-emption, under the act of 1838, to the N. E. qr. of 18, and on the next day Garland proved one to the same tract, under the act of 1830. Garland proved a pre-emption to the of the SE£ of 18 and the E£ of the NE¿ of 19. Wynn entered and paid for the NEj- of 18, and got a certificate of entry for it; but Garland, afterwards, got a certificate for it: Wynn’s entry was canceled, and Garland got the patent. Garland entered and paid for the east halves of the SE-J of 18 and the NE-J of 19, and obtained a certificate for them; but Vfynn also proved a pre-emption, in the right of one Jones, to the SE-J of 18, entered it, paid for it, and got a certificate, and Garland’s entry was canceled, on the grounds that Jones’ preemption to that quarter was valid, and as to the rest, that as Garland already owned 320 acres of land, he could have no pre-emption for any more. So Wynn obtained a patent for the SE¿ of 18, and purchased the E£ of the NEJ of 19, from the State of Arkansas, as a part of the Seminary land, and obtained m deed for it.
*31Before tbe bill was filed, Wynn removed the division fence, and placed it near the line between sections 17 and 18, and between sections 17 and 19. Garland was, in February, 1846, put in possession, by means of some legal process, of the land he had before cultivated in sec. 18; but Wynn again took possession of it, and has ever since been, and still is, in peaceable possession of the NE and SE quarters of section 18, and the E& of the NE£ of section 19. After Wynn so removed his fence, he dug a ditch outside of it, close to the line of sections 17 and 18, but wholly on 18, and with the earth from it threw up an embankment which stopped up Garland’s small ditches, and they still remain so stopped.
The writ of injunction ordered Wynn not to stop up the main ditch. This “ main ditch” commenced in the NW{ of section 19, and ran southwardly. In 1839, Wynn had it stopped and it ever after remained so.
Up to. the time that Wynn removed the fences, Garland cultivated on the NEJ- of sec. 18, from 17 to 20 acres; on the SE|of 18, from 12 to 18 acres, and on the E-|- of theNEj of 19, from one to two acres.
On this state of facts the Court decreed the relief prayed for: that Garland’s right to drain his land through the ditches made in 1836, by means of his small or cross ditches then cut; and perpetually enjoined Wynn from interfering with this right, and also decreed that Garland should, at all times, have the right of entry on, and passage over Wynn’s land, to remove obstructions in the ditches and keep them open.
It appears that the small or cross ditches are three or four in number, all running westwardly from Garland’s land, in section 17 into the SE£ of 18. None of them, it appears, go into the NEi of 18.
From the decree rendered in the cause, Wynn appealed to this Court, upon which the questions presented are to be adjudicated. '
The questions raised by the counsel and legitimately growing out of the case, as stated, may be propounded as follows:
*321st. What is the nature of the right claimed by the bill, and allowed by the decree? Is it an easement, or servitude, or is it a mere license; and is it not such an interest in lands, as can, under the statute of frauds, pass only by writing?
2d. Wynn not having relied on the statute of frauds by his answer or plea, can he have the benefit of the objection, that the contract is proved to have been made merely orally — he having absolutely denied the agreement?
3d. Does the doctrine of part performance apply to such a case; and if so, do such facts exist as amount to part performance?.
4th. Is there mutuality in the agreement, which will authorize a Court of chancery to enforce it?
It must be conceded that several of these questions are fraught with difficulty, on account of their comparative novelty and intrinsic embarrassment, resulting, in part, from the fact, that several prominent cases, which appear both in the English and American Reports, in which several of the points that arise in this investigation occur, have been reversed, or else seriously questioned by later, and, what have been considered, more authoritative adjudications, coupled with the additional fact, that the doctrine of the common law, on the subject of easement, is derived from the civil law* treating of servitudes, with which we do not profess to be familiar.
We propose to take up and consider the questions propounded, in their order as they occur.
First. The nature of the right, claimed by the bill and allowed by the decree, is that of an easement, technically speaking, and not a mere or simple license, used in the same acceptation.
The term simple license, used in this sense, has been, and may be variously defined. The definition, which we most approve, is that of Mr. Justice Gibson, in Rerick vs. Kern (14 Serg. & R. 271.) He says, that a simple or voluntary license is merely an authority, without reward or consideration, to do a particular act, or series of acts on another’s land, without passing any in*33terest or estate in the soil. And this definition is concurred in by Chancellor Kent, (3 Kents Com. 452.) and Chief Justice Parker, in Cook vs. Stearns (11 Mass. Rep. 537.)
A simple or voluntary license need not be in writing, for the reason, that it is not within the first section of the statute of frauds. See 1 Sug. on Vend. 106 note 1; Winter vs. Brockwell, 8 East Rep. 308; Rex vs. Inhabitants of Stanton, 2 M. & Selw. 461; Taylor vs. Walters, 2 Marsh. 351; 7 Taunt. 74; Wood vs. Manly, 11 Ad. & Ell. 34; Rex. vs. Inhabitants of Horndon, 4 M. & Selw. 562; Lefever vs. Lefever, 4 Serg. & Rawle 241.
This kind of license, it is said, is revocable at the pleasure of the party granting it; but not, however, to make the grantee responsible in trespass, or any other form of action, for acts committed on the land in pursuance of the license. See Cloflin vs. Carpenter, 4 Metc. Rep. 583; Nettleton vs. Sikes, 8 Ib. 34; Wood vs. Manly, ubi. sup.; Whitemarsh vs. Walker, 1 Metc. Rep. 313; Sheffield et al. vs. Collier, 3 Kelly’s (Ga,.) Rep. 85. It is also said that though a license is revocable as above stated, yet the party granting it will not be allowed to do so, if the grantee has been induced to expend his means, or money, towards its enjoyment, without re-embursing or making him whole in the amount thus appropriated. See Rerick vs. Kern, ubi sup.; Prince vs. Case, 10 Conn. Rep. 375, 383; 2 Amer. Lead. Gases (by Hare & Wallace) 514, note and authorities therein cited.
An easement, in contradistinction to a simple or voluntary license, is defined to be, a liberty, privilege, or advantage, which one man may have in the lands of another without profit, and it may arise by deed or prescription. See 1 Bouv. Dict. 501; 1 Serg. & R. 298; 5 Barn. & Cres. 221; 3 Ib. 339; 3 Bing. Rep. 118; 3 McCord Rep. 131, 194; 2 Ib. 451; 14 Mass.Rep.49; 3 Pick. Rep. 408; 14 Serg. & R. 271.
From this definition of an easement it follows, therefore, that it can only be communicated by deed, or other instrument in writing, or by prescription, and as a consequence, unless it be claimed by prescription, the privilege, under the statute of frauds, must be evidenced by deed, or some other writing, etc. *34See Sheffield et al. vs. Cottier ubi sup.; Shep. Touchstone 231; 4 M. & Selw. 565.
Notwithstanding the grant of an easement is embraced within the operation of the statute of frauds, and therefore must be in writing, yet it has been holden, that a parol grant executed will be upheld and sustained under the same circumstances, and on the same principle, that a parol contract for the sale of land would be. See Ricker vs. Kelly, 1 Greenlf. Rep. 117, and the numerous authorities cited on this point by'the counsel for Garland in his brief.
Beside this, where there has been given a parol license of a privilege amounting to an easement, and where the enjoyment of it must necessarily be preceded by the expenditure of money or capital, or where the grantee has made improvements, in good faith, under the grant, or invested his capital in consequence of it — under these circumstances the grantee becomes a purchaser of the easement granted by parol, for a valuable consideration, and consequently will be entitled to have it specifically performed in equity, unless the party will re-imburse him in his expenditure, or pay him for his improvements, provided this will put the grantee in statu quo. See Sheffield vs. Collier, 3 Kelly (Ga.) Rep. 84 et seq., and the cases cited above.
Second. In response to this question, we have to say, that though Wynn did not set up the statute of frauds in his answer, or otherwise, still we hold he is not precluded from availing himself of the advantage of the statute of frauds at the hearing, for the reason that he absolutely denied, in his answer, the mating of the agreement charged in the bill. If a defendant presents the issue of agreement, or no agreement, the complainant must prove a valid agreement. It is where he admits a verbal agreement that he must insist upon the statute of frauds. See Jarvis vs. Smith, 1 Hoff. Rep. 570; Harris vs. Knickerbocker, 5 Wend. Rep. 643; Cozine vs. Graham, 2 Peng. Rep. 181; Ontario Bank vs. Root, 3 Ib. 478; Gloes vs. Bourne, 10 Ib. 535; 1 Mo. Rep. 660; 22 Ib. 33; 3 A. K. Marsh. 445.
The appellant having denied the agreement charged in the *35bill, tbe statute of frauds became a question of fact at tbe bearing. At the hearing it appeared in evidence, that there was such an agreement made as the one charged in the bill, but that it was in parol, and consequently within the statute of frauds in consequence of the character of the interest involved, it being, as we have already held, in the nature of an casement, or an interest amounting to an incorporeal hereditament, and consequently should have been evidenced by writing, or else held by prescription. We think, however, there can be no doubt but that the same proof, which established this fact, is very conclusive that the agreement was so far executed, on the part of Garland, as to impose on Wynn the obligation to execute his part thereof, in order to prevent a fraud from being practiced on the former. See Dorrance vs. Simons, 2 Root Rep. 208; 2 Story's Eq. p. 77, note 1.
Courts of chancery, notwithstanding it may appear from the evidence, in a case like the one before us, that a contract affecting lands is in parol, will nevertheless decree its specific performance, if it also is made to appear that one of the parties has, in good faith, executed his part of it, and cannot be compensated in damages, or where it would operate as a fraud as to one party; because the specifie execution of a contract in equity is a matter not of absolute right in the party who asks it, but of sound discretion in the Court, to which application is made. See 2 Story's Eq., sec. 742, 769.
Third. As to this enquiry — we have already partially anticipated it. The case of Sheffield vs. Collier, 3 Kelly (Ga.) Rep., before cited, and the several authorities therein referred to, are conclusive on this question. The doctrine of part performance, in reference to parol contracts respecting lands, is well applicable to licenses executed, such as we have held the one to be, that we are considering, as lar as regards Garland. The circumstances and facts attending this abundantly show that Garland has done all on his part, that he assumed to do, except, possibly, in respect to that part of it, which made the main or leading ditch constructed between the lands claimed by himself *36and Wynn, in 1836, the perpetual boundary between their lands or plantations, and as to this we think it clear, from the proof, the agreement as to boundary was mutually abandoned in 1843, when their respective claims were made to tracts extending over the conditional line agreed upon in 1836. The parties had the undoubted right to discharge each other from the agreement in 1843, either in whole or in part. If in whole, it was from that time at an end; if in part, the part not affected remained, only, obligatory. It appears from the proof, that though they at one time considered the matter of the conventional line, made by the agreement of 1836, of importance, yet, in 1843, we see them by mutual consent, as it were, setting the agreement aside, so far as it pertained to the conventional boundary. It is evident, we think, that in 1843, they regarded the agreement only as subsisting in reference to the ditches and the privilege of mutual drainage secured thereby. We are at a loss to conceive how there can exist the slightest doubt on this branch of the case.
Fourth. Ordinarily, mutuality in contracts is necessary to authorize a Court of chancery to decree a specific performance of them. But it has been laid down, that if a man has performed a valuable part of an agreement, as, in the case before us, that portion of the agreement performed by Garland, and is in no default for not performing the residue, which we have already held to be the case with Garland, in the instance before us, then it is but reasonable he should have a specific execution of the other part of the contract. See Story's Eq., sec. 772.
And where the terms of the agreement have not been strictly complied with, or are incapable of being strictly complied with: still, if there has not been gross negligence in the party, and it is conscientious that the agreement should be performed: and if compensation may be made for the injury occasioned by the non-compliance with the strict terms — in all such cases, Courts of equity will interfere and decree a specific performance. For the doctrine of Courts of equity is, not forfeiture, but compensation. Indeed, in some cases, Courts of equity will decree a specific execution, not according to the letter of the contract, *37if that will be unconscientious, but tbey will modify it according to the change of circumstances. See 2 Story’s Eq., sec. 775.
We think the case before us, is one in which the Court might well apply the principle just stated, even were it to modify the agreement in question according to the change of circumstances indicated by the record before us. We have said, however, before, that we have been saved this duty by the conduct and acts of the parties themselves in respect to the change, which they mutually made in the division line between them, indicated by the agreement of 1836, to be perpetuated by the leading or main ditches constructed by them conjointly.
The license to construct the ditches, and the agreement, upon the part of Wynn, that they might and should be used as drains to the plantations of both himself and Garland, indicate very clearly that it was the intention of the parties, that the enjoyment of this license should be perpetual, and we infer this from the nature of the privilege granted, coupled with the condition of the lands intended to be benefited, in reference to their locality, and natural defects designed to be remedied by the ditches as to both plantations.
If Wynn had designed to reserve to himself the power of revoking the license granted by him to Garland, after it was carried into effect, he should have done so expressly at the time the agreement was entered into, or before its execution was commenced on the part of Garland. Not having done so, it must be intended by the Court that it was designed by the parties to be irrevocable. He not only stood by and saw Garland expend his labor, and that of his hands, upon the ditches in question, but absolutely participated withhim in constructing them, causing him to expend his means not only upon the small ditches, but that part of the main ditch along his line until it should unite with the one to be constructed by Wynn at the pond or low place in the prairie, and thence on the joint ditch leading into the swamp lying between Red river and the-lands of Garland. All this work and labor on the part of Garland and his slaves and servants, must have been of considerable *38value. The stopping up of the ditches by Wynn, at the point designated, would render this labor valueless to Garland, not only so far as it was spent on the lands of Wynn, but likewise, as the proof shows, in respect to those ditches lying entirely on his own lands. All this, we are constrained to believe, was superinduced by the confidence, which he, Garland, must have reposed, in the good faith of Wynn. If Wynn could be permitted to violate this good faith, to take advantage of Garland, it must be evident that his loss would be irreparable, taking into view the value of his plantation, the importance of drainage, and the certainty of its being impeded by the stoppage of the artificial channels or outlets constructed by the parties in 1836, under the agreement in question.
We regard it as a question of immateriality in this inquiry, whether a part or all the ditches are now, or were, at the time of their construction, on the land of Garland, or whether the license was given to Garland by Wynn to construct them in the first place without consideration; for we have seen that the ditches were made in part by Garland, that the labor bestowed in this way was of value, and that they were made under the agreement and to the knowledge of Wynn, whilst they were progressing; and we have held that the expenditure of money under these circumstances, will be regarded in equity as so much consideration paid by the grantee to the grantor of the license, inducing the expenditure, and has the effect of turning such license into an agreement which will be executed in equity.
Entertaining these views, we are forced to the conclusion, that the decree rendered by the Court below is not only warranted by the facts shown by the record, but sustained and authorized by the law.
Finding no error in the decred it is therefose in all things affirmed.